Recently, a heated debate has been taking place in England over whether the country should withdraw from the European Convention on Human Rights (ECHR). The topic has gained momentum following Brexit and the quest for more state sovereignty that Brexit ignited. Crucial to the debate is the Rwanda plan for tackling immigration, which the Prime Minister Rishi Sunak seems very adamant about. In fact, following the legal challenges to the plan, based on the ECHR and the domestic law that reflects it, many have called for the withdrawal from the Convention.
Those in favour of the withdrawal often argue that the ECHR has been interpreted by the European Court of Human Rights far too broadly. As a result, the rights granted under the Convention have become more far-reaching than those envisioned when the Convention was accepted. This, it is purported, effectively ties the country’s hands in matters that should fall under national sovereignty. The most reported examples are the areas of national security and border control, particularly, the issues of immigration and terrorism. According to those in favour of withdrawal the balance stricken by the Convention is too skewed towards guaranteeing broad rights, thus leaving countries unable to take any significant action.
On the other side of the debate, there are those who believe withdrawing from the ECHR would send a regressive message and undermine England’s long-standing commitment to human rights. It is also suggested that without any external oversight and curtailment of government’s power, especially in a system like England’s where the majority does hold a lot of power, the risk of human rights abuses would drastically increase. Especially in the current climate, it is argued that international instruments should remain as central as possible due to the increase of the far-right political rhetoric that, when unchecked, has led to mass human rights violations in the past. In response to the concerns surrounding national security and border-control, those who oppose withdrawal from the Convention, argue that an effective response to immigration or terrorism should be found collectively and without delegating to far-away countries. Crucially, it is stressed that cherry-picking when and to whom human rights laws apply would defeat the purpose of such laws.
It is, in fact, undeniable that the ECHR has introduced rights that domestic laws, in the UK and other signatory countries, did not guarantee. It is similarly true that the oversight of the ECtHR has contributed to accountability. Nonetheless, it is also undeniable that the challenges countries all around are facing are significantly decreasing the consensus around the ECHR. It has arguably been the inability to effectively deal with issues like immigration that caused widespread discontent which ultimately led to far-right parties being voted into power. In response to the pressure to take decisive actions on the one hand, and the challenges to such actions posed on the basis of the ECHR on the other hand, we are witnessing governments trying to circumvent the limits posed by the ECHR through legal escamotages. Some countries, like Italy, are considering deals with third countries to outsource processing of migrants which are being placed “outside the scope of EU law”. Similarly, the UK has now decided to use emergency laws as a way to overcome the legal challenges posed to the Rwanda plan.
As mentioned, the Rwanda plan envisioned by the PM to tackle immigration, especially that coming from France through the English Channel, has been taken as yet another example of undue interference in matters that should fall under domestic control. The plan would allow the UK to relocate to Rwanda illegal immigrants and asylum seekers for processing, asylum and resettlement. Nonetheless, the UK Supreme Court found the plan to be unlawful on the basis that it would breach the ECHR for “there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement”. This, however, did not stop Rishi Sunak who has now proposed a new emergency bill which would allow UK courts to disapply sections of the Human Rights Act (that is of the ECHR) to ensure the Rwanda Bill cannot be stopped on human rights grounds. A “Safety of Rwanda Bill” has also been published to declare Rwanda a safe country, thus bypassing the assessment made by the Supreme Court in light of the ECHR. It, therefore, seems that the ECHR risks being either emptied of any effective application through alternative legal tools or becoming redundant due to countries withdrawing from it. On this ground, it is here argued that, in order to preserve the role of international law in the sphere of human rights, it is necessary to find a middle ground.
Whilst the inability to tackle the domestic repercussions of international challenges is obviously not entirely attributable to the limits posed by the ECHR, it must be acknowledged that the strict application of wide interpretations of rights contained in the ECHR is creating a tension between state sovereignty and international instruments that pose a risk to the existence of the latter. Growing internal concerns, and resulting pressures on governments, might trigger, as in the case of the UK, popular consensus to withdraw from international conventions. Once set in motion, this process might become widespread to the point of greatly limiting the effectiveness of these instruments. Thus, it would seem that the best option to preserve the entirety of the ECHR is to loosen the firm grip on some aspects of it. It is important to note that limits such as that of being unable to repatriate asylum seekers who do not qualify for asylum due to the risk of them being subjected to ill-treatment was envisioned for people who would be likely to suffer torture or unjust imprisonment, that is to be persecuted, in their countries. It also was introduced at a time when migration was not as great a challenge as it is today. In a world thorned by war, state brutality and extreme poverty, it might seem that the “ill-treatment” bar poses too great a burden on signatories.
On these grounds, allowing states to apply a stricter interpretation of that limitation may ultimately help lowering discontent thus diffusing the pressure on governments to take more decisive actions, including withdrawing from the ECHR. Though not a perfect solution that lives up to the best ideals we might have with regards to human rights protection, it might have to be a price to pay to preserve the relevance and effectiveness of the ECHR as a whole.
By The European Institute for International Law and International Relations
